Author: *Dr Sharifullah Dorani
Original Publication: Political Reflection
Publication Date: 5 November 2019
Photo Credit: Christian Wasserfallen/Pexels
Key Comment
This article examines how UK and European courts have navigated the tension between human rights and national security in terrorism emergencies, analysing pre‑ and post‑Human Rights Act 1998 jurisprudence and assessing whether constitutional legitimacy justifies restrictions of civil liberties. Its findings are highly relevant to International Relations, as it highlights how domestic and international human rights law intersect with state security, counterterrorism policy, and the global normative framework. Understanding how courts balance security and liberty informs international cooperation on counterterrorism, extradition, and compliance with treaty obligations.
Summary of the Article
The article assesses whether the European Court of Human Rights (ECtHR) and UK courts have interpreted the conditions for derogating from human rights in ways that meaningfully protect fundamental liberties against executive claims of national security necessity. By tracing doctrinal developments before and after the Human Rights Act 1998 (HRA), and engaging key cases such as Liversidge, A and Others, and JJ, the article highlights the historical deference of courts to executive security judgments and the evolving constitutional role of judicial review. Critics and defenders of heightened judicial scrutiny are examined, and the article concludes that while courts have sometimes deferred to the executive, the HRA has empowered judges to apply stricter standards of proportionality and legality, strengthening the rule of law even in the context of terrorism.
Introduction
The article is relevant to International Relations because human rights increasingly influence foreign and security policy decision‑making. It illustrates the complex balancing acts national systems undertake between civil liberties and security in the fight against transnational terrorism.
‘Terrorist emergencies justify extensive and far‑reaching security measures that may legitimately restrict the enjoyment of fundamental rights: to expect the courts to adopt a restrictive approach to such emergency measures is to emphasise concern for abstract ideals over common sense.’
This quotation goes to the heart of the British constitution by raising fundamental questions about the respective roles of the executive and the judiciary in emergencies. Constitutionally, the executive—endowed with expertise, access to intelligence, and democratic accountability—is responsible for national security decisions. The judiciary, unaccountable to the electorate and lacking this expertise, risks elevating abstract ideals above the common sense of collective protection if it unduly second-guesses executive judgments.
This article asks: Have the ECtHR and UK courts interpreted constitutional and Convention conditions strictly enough to defend human rights against national security claims?
The analysis unfolds in four sections:
1. The constitutional position of courts and the executive before the HRA;
2. The ECtHR’s approach to derogations under Article 15 of the European Convention on Human Rights (ECHR);
3. A critical analysis of constitutional legitimacy and judicial competence post‑HRA;
4. An examination of how UK courts interpreted Article 15 conditions in the HRA era, including key cases such as A and Others and JJ.
Constitutional Position of Courts and Executive Before the HRA
Fascist theorist Carl Schmitt argued that the executive is sovereign because it decides the state of emergency and identifies the enemy. While this may describe authoritarian systems, the UK constitution places ultimate sovereignty in Parliament, and the executive remains subject to judicial review. Lord Atkin’s dissent in Liversidge insists that “the laws are not silent” in war, and that courts must guard liberty even in crisis.
Post‑war cases like Liversidge and Halliday reflected judicial deference to executive security decisions. In Liversidge, the majority refused to require the executive to disclose grounds for detention despite statutory language requiring ‘reasonable cause’, while Lord Atkin criticised this as an abdication of judicial responsibility. Lord Shaw dissented similarly in Halliday, emphasising fundamental liberties like habeas corpus.
Has the ECtHR Given Priority to Human Rights or National Security?
Article 15 of the ECHR permits derogation from certain rights during emergencies threatening the life of the nation, so long as measures are strictly required and consistent with other obligations.
Despite these safeguards, cases such as Lawless, Ireland v United Kingdom, McBride, and Aksoy show that the ECtHR has often granted states a wide margin of appreciation, deferring to their assessments of emergency existence and necessity.
Constitutional Legitimacy and Civil Liberties
Former Prime Minister Tony Blair argued that no civil liberty is greater than freedom from terrorism. Article 17 permits the restriction of rights for those who reject human rights. Yet post‑9/11 legislation such as the Terrorism Act 2000 and 2001 Act often cast a wide net, targeting more than the intended extremists and conferring broad discretion on the executive.
Judicial review is essential for legitimacy. Judges derive legitimacy from reasoned decisions rooted in law and insulated from public fear.
UK Courts’ Response Post‑HRA
After 9/11, the government derogated from Article 5 to permit detention without trial under Part 4 of the 2001 Act. A and Others upheld the existence of an emergency, deferring to the executive; Lord Hoffmann dissented, asserting that serious but politically motivated violence does not meet the threshold required by Article 15. Feldman criticised the assumption that the executive was better placed than courts to assess risk.
Final Section: Judicial Responses, Criticism and Control Orders
The outcome of A and Others drew mixed reactions. Tierney argued that it was constitutionally appropriate for the courts to defer to the executive, given its access to intelligence and accountability to Parliament; this aligned with the ECtHR’s margin-of-appreciation approach in Lawless and McBride.
Hickman applauded Hoffmann’s dissent, stressing that derogations should not place government beyond the rule of law and that courts must insist on strict necessity and explore less intrusive alternatives.
Control orders presented further challenges. Although preventative in nature, they raised profound constitutional questions about liberty and evidentiary standards. Cases such as MB and JJ demonstrated judicial willingness to scrutinise executive conduct: declarations of incompatibility under section 4 of the HRA and principled application of proportionality and reasonable suspicion standards helped refine the constitutional balance between rights and security.
Conclusion
Cases such as Liversidge, Halliday, and Hosenball illustrated an earlier era of judicial deference to executive security decisions. The introduction of the ECHR and later the HRA provided tools for stricter review, especially through Article 15 conditions and proportionality analysis.
Post‑HRA jurisprudence reveals a judicial awakening: even in national security contexts, courts have a constitutional duty to ensure the rule of law is respected. While historical quotations may describe the UK fifty years ago, they no longer define the constitutional functions of courts in the HRA era.
➡Link to the article: Shall the Court Subject CounterTerrorism Law to Judicial Review?
National Security vs Human Rights
*Dr Sharifullah Dorani holds a PhD from Durham University on America’s Afghanistan War, a Master of Laws from University College London, and a degree in law from the University of Northampton, all in the UK. He is the author of numerous scholarly articles and two acclaimed books: The Lone Leopard, a novel set in Afghanistan, and America in Afghanistan, published by Bloomsbury Publishing. He is the founder of CEPSAF and serves as the South Asia and Middle Eastern Editor at CESRAN International. All of Dr Dorani’s work is written to the highest academic standards, is widely indexed through Google Scholar, and is available in the libraries of hundreds of institutions worldwide, including Oxford and Harvard.